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Tort liability for foreign wrongs: A judgment that gives with one hand, but takes with another

My last post highlighted a recent case that applied the elements of joint tortious liability in English law. I mentioned some of the uncertainties involved with this type of civil liability. But if a claim relates to a wrongful act allegedly committed abroad, questions arise as to which system of law the English court should apply.

The general rule is that the law of the country in which the damage arose will apply instead of English law.[1] Therefore, litigants must often advance expert evidence on foreign law, so that an English judge can understand it, make findings as to its elements, then apply it to the facts. This can be a complex and expensive exercise.

The interlocutory decision in Iraqi Civilians v Ministry of Defence [2015] EWHC 1254 (QB) illustrates some of the complexities that can arise. The case involves tort claims against the UK government, rather than a corporate. But some of the points highlighted by this striking decision are of broader relevance to areas that are the primary focus of this site.

The relevant background is that there are currently hundreds of claims pending in the High Court which have been brought by Iraqi civilians against the UK’s Ministry of Defence (“MoD”). Amongst them are claims brought by individuals who were initially detained by British forces in Iraq, but were then transferred into the custody of the US armed forces where, it is alleged, they were mistreated – in some instances horrifically so. These claims have been referred to as the “handover” cases. They are advanced on the basis of both the Human Rights Act 1998 and tort. For present purposes, I focus on the tort law points.

Should English courts provide a remedy when prisoners were handed over to US forces? (Credit: Justin Norman under Creative Commons)

The issue therefore arises as to the basis, if any, on which the MoD could be liable for the conduct of the US armed forces? We know (see my last post) that aiding and abetting liability is unavailable in English tort law. But what is the position in Iraqi law? What standards of knowledge, awareness, or duty of care does Iraqi law require such that liability might be imposed for the independent actions of another? This is the point that Leggatt J had to decide. He reached what I would suggest is a startling conclusion.

Leggatt J formulated the question that he had to decide as follows:

would the defendant be liable under Iraqi law for harm caused to the claimant, if it were shown that British soldiers or officials who ordered or approved the transfer of the claimant into the custody of US forces knew or ought to have known that the claimant would or might be subjected to serious mistreatment or unlawfully detained; and, if so, what kind of actual or constructive knowledge is necessary to give rise to such liability. (para. 11)

Honing in on Iraqi law, Leggatt J identified the key dispute between the parties as being the meaning and effect of Article 211 of the Iraqi Civil Code. This provides that a defendant is not liable when harm arises from a “foreign cause beyond his control,” such as the “act of another.” Leggatt J evaluated the parties’ completing expert evidence as to the effect of Article 211.

The MoD’s expert said that Article 211 meant that an intentional harm committed by US forces would generally “drown out” any negligent conduct by the MoD in handing over persons to US forces. (Leggatt J noted that this analysis seems familiar to an English lawyer: in English law the intentional wrongful act of a third party may generally be considered to break the chain of causation between a negligent act of the defendant and the claimant’s injury (para. 47)).

The claimant’s expert said that Article 211 only applies where the defendant has no relationship to the primary wrongdoer: that is what is meant by “foreign cause” and “act of another” (my emphasis). The claimant’s expert advanced three alternative mental states which could give rise to liability under Iraqi law:

(a) an intention to facilitate the commission of an unlawful act; (b) foresight that another person might commit an unlawful act, coupled with failure to act in accordance with a legal duty; or (c) contemplation and acceptance of the risk that his action will facilitate the unlawful act of another. (para. 35)

Giving (to the MoD) with one hand

Leggatt J professed to accept the MoD’s expert’s evidence that an unlawful act of a third party who is not in collusion with the defendant and over whom the defendant does not exercise any meaningful control would be regarded by an Iraqi court as a “foreign cause beyond the control of the defendant” which might drown out any fault on the part of the defendant (para. 46). Assessing the expert evidence, and making numerous criticisms of the claimant’s expert, Leggatt J concluded that mere negligence is insufficient to establish liability in Iraqi law if it is “drowned out” by a subsequent intentional wrong (paras 50-51).

Taking (from the MoD) with the other hand

Despite numerous, fairly forthright, criticisms of the claimant’s expert’s evidence, Leggatt J accepted that intentional facilitation (i.e. more than negligence) could lead to liability as a matter of Iraqi law. He accepted the expert’s summary that facilitation must be intentional in either one of the above three ways (para. 36). Leggatt J summarised the position as follows:

it will not be sufficient to show that the defendant owed a duty to take care not to expose [the claimants] to a risk of ill-treatment …. [But liability could be established by] “one of the three mental states identified by [the claimant’s expert…]: (a) an intention to facilitate the claimant’s ill-treatment; or (b) actual foresight that the claimant might suffer such ill-treatment, coupled with failure to act in accordance with a legal duty to protect the claimant; or (c) contemplation and acceptance of the risk that transferring the claimant would facilitate his ill-treatment. (para. 52)

Comments

On the one hand, Leggatt J’s ruling appears favourable to the MoD because it professes to exclude a standard akin to negligence. If the matter comes to trial on the merits, questions of whether harm was reasonably foreseeable should not be the focus.

On the other hand, Leggatt J’s ruling creates difficulties for the MoD because the standard that he accepted focuses on the subjective knowledge of the MoD, including contemplation and acceptance of risks. This is a pretty broad standard for liability. Arguably it increases the scope of the disclosure obligation upon the MoD as to its decision making processes and its knowledge of events in US custody sites. This could be uncomfortable territory for the MoD to litigate. Moreover, the finding as to the content of Iraqi law might be persuasive in other cases, including cases involving corporate defendants. Let’s see whether the MoD appeals.

[1] This is by virtue of section 11(1) of the Private International Law (Miscellaneous Provisions) Act 1995 followed later by Article 4 of the Rome Regulation on the Law Applicable to Non-Contractual Obligations. The general rule can be displaced in certain circumstances.